* Pursuant to Local Rule 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited

circumstances set forth in Local Rule 47.5.4.

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

Nos. 95-20417

 95-20754

____________

STERLING WHITE,

Plaintiff-Appellant,

versus

THE GOODYEAR TIRE AND RUBBER COMPANY,

Defendant-Appellee.

Appeal from the United States District Court

For the Southern District of Texas

(CA-H-94-3508)

August 26, 1996

Before KING, DAVIS, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Sterling White appeals the district court’s orders granting

The Goodyear Tire and Rubber Company’s motion for summary judgment

and motion for costs and attorneys’ fees. We affirm in part,

vacate and remand in part, and reverse and remand in part.

I

Sterling White was employed as a baler-helper at Goodyear's
 

1 White argues that while he always had a genetic trait for sickle cell

anemia, his sickle cell crisis was caused by his job environment. However, when

White initially experienced his crisis, he stated separately on several benefit

claim forms for his employer that his injury was not due in any way to a

condition arising from his occupation.

 

2 The ADA protects "qualified individuals with a disability" from

employment discrimination on account of the disability. 42 U.S.C. § 12112. A

"qualified individual with a disability" is "an individual with a disability who,

with or without reasonable accommodation, can perform the essential functions of

the employment position that such individual holds or desires." § 12111(8). 

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Chemical Plant in Houston, Texas. The baler-helper position

required White to work in a non-air conditioned building with

extremely hot rubber, fumes, and chemicals. In October of 1991,

White experienced a sickle cell crisis, which he alleges may have

been caused by his work environment.1 White’s doctors recommended

that he avoid exposure to chemicals, fumes, and excessive heat.

Given those medical restrictions and the essential functions of the

baler-helper position, Goodyear claimed it could not make any

reasonable accommodations to enable White to perform the essential

functions of his job. In addition, Goodyear claimed that there

were no other positions available that were appropriate for White's

restrictions and abilities. Therefore, Goodyear terminated White.

White filed a charge of employment discrimination with the

Equal Employment Opportunity Commission (“EEOC”) claiming that he

had been discriminated against because of his disability, in

violation of the Americans with Disabilities Act. The EEOC issued

White a right to sue letter for a violation of his rights under the

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101.2 White

stated in his deposition, which is contained in the summary
 

3 FED. R. CIV. P.39(b) provides:

Issues not demanded for trial by jury as provided in Rule 38 shall be

tried by the court; but, notwithstanding the failure of a party to demand

a jury in an action in which such a demand might have been made of right,

the court in its discretion upon motion may order a trial by a jury of any

or all issues.

-3-

judgment record, that he also filed a complaint of race

discrimination with the EEOC after he filed the complaint of

disability discrimination. The summary judgment evidence does not

indicate, however, whether the EEOC ever issued a formal charge or

a right to sue letter based on White’s complaint of race

discrimination. Subsequently, White filed a pro se complaint in

federal court, alleging race discrimination, in violation of 42

U.S.C. § 2000e et seq. (“Title VII”), and disability

discrimination, in violation of the ADA. 

Eight months after the federal suit was filed, White was

represented in federal court by an attorney for the first time. 

Simultaneous with her Notice of Appearance, White’s attorney

requested a jury trial, which the district court denied as

untimely. Subsequently, White filed a FED. R. CIV. P. 39(b) motion

requesting a jury trial,3 which the district court denied. White

then filed a lawsuit in Texas state court, pursuant to TEX. LAB.

CODE ANN. § 451.001, alleging that Goodyear terminated him in

retaliation for his institution of a workers' compensation claim.

Goodyear removed the state lawsuit to federal court, and the two

actions were consolidated.
 

4 The district court initially entered an "interlocutory order" stating

that on Goodyear's motion for summary judgment, White takes nothing. The court

left the issue of sanctions to be decided in the future. White appealed this

"interlocutory order" in No. 95-20417. At that time, this Court requested that

the parties brief the issue of whether we had jurisdiction over the district

court's interlocutory order. Several months later, the district court entered

a final judgment in the case and ordered that Goodyear take $3,500 on its claim

for costs and attorneys’ fees, pursuant to 28 U.S.C. § 1927. White appealed the

order for costs and attorneys’ fees in No. 95-20754. The two appeals have been

consolidated. Even though the district court's interlocutory order was not a

final judgment at the time that White filed the initial appeal, a final judgment

has since been entered in the case. Therefore, this Court now has jurisdiction

over the appeal. See Alcorn County, Miss. v. U.S. Interstate Supplies, Inc., 731

F.2d 1160, 1166 (5th Cir. 1984) (stating that “a premature notice of appeal

properly may invoke this court’s jurisdiction . . . subject to the exceptions

mandated by FED. R. APP. P. 4(a)(4)”).

-4-

Goodyear filed a motion for partial summary judgment on

White's Title VII and workers' compensation retaliation claims.

White filed a response to Goodyear's motion for partial summary

judgment. The district court held a hearing on the summary

judgment motion and dismissed all of White's claims, including his

ADA claim. Goodyear then filed a motion for costs and attorneys’

fees, pursuant to 28 U.S.C. § 1927. The district court entered an

order and a final judgment ordering that Goodyear take $3,500 on

its claim for costs and attorneys’ fees. White now appeals the

district court’s order granting summary judgment in Goodyear’s

favor and the order awarding Goodyear costs and attorneys’ fees.4

II

White argues that the district court erred in sua sponte

granting summary judgment in Goodyear’s favor on his ADA claim. A

district court has the power to grant summary judgment sua sponte

as long as the nonmoving party has adequate notice that he must
-5-

come forward with his evidence. Leatherman v. Tarrant County

Narcotics Intell. and Coord. Unit, 28 F.3d 1388, 1397 (5th Cir.

1994). This notice requirement is met if the nonmoving party has

notice that his claim may be subject to summary dismissal at least

ten days before the actual grant of summary judgment. FED. R. CIV.

P. 56(c); Leatherman, 28 F.3d at 1397. “Any reasonable doubt about

whether [the nonmovant] received notice that its entire case was at

risk must be resolved in [the nonmovant’s] favor.” NL Indus., Inc.

v. GHR Energy Corp., 940 F.2d 957, 965 (5th Cir. 1991), cert.

denied, 502 U.S. 1032, 112 S. Ct. 873, 116 L. Ed. 2d 778 (1992).

A district court’s error in not providing adequate notice may be

considered harmless "if the nonmovant has no additional evidence or

if all of the nonmovant's additional evidence is reviewed by the

appellate court and none of the evidence presents a genuine issue

of material fact." Leatherman, 28 F.3d at 1398 (internal quotation

marks omitted). 

Goodyear argues that White had adequate notice that his ADA

claim might be considered for summary judgment because Goodyear’s

brief in support of its motion for partial summary judgment

included facts sufficient to defeat White’s ADA claim. White

argues that, when he received Goodyear’s motion for partial summary

judgment, he believed that only his Title VII and workers’

compensation retaliation claims would be considered for summary

judgment. As evidence of this belief, White contends that after
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receiving only a partial motion for summary judgment, he

specifically elected not to depose the human resources manager

involved in his termination who could have provided essential

evidence for his ADA claim. We conclude that White did not receive

adequate notice that his ADA claim might be subject to summary

judgment. See NL Indus., Inc., 940 F.2d at 966 (reversing summary

judgment which district court granted sua sponte where movant only

requested partial summary judgment and movant’s motion did not

provide nonmovant with adequate notice). Additionally, we cannot

conclude that this lack of notice was harmless. Because White did

not have notice that his ADA claim would be considered for summary

judgment he did not conduct essential discovery, nor did he place

evidence in the record to support his ADA claim. We therefore

vacate the district court’s order granting Goodyear summary

judgment on White’s ADA claim. 

III

White argues that the district court erred in granting

Goodyear summary judgment on his Title VII claim. We review a

district court’s grant of summary judgment de novo “to determine,

viewing the evidence in the light most favorable to the nonmoving

party, whether any genuine issue of material fact existed and

whether the district court correctly applied the relevant law.”

Anderson v. American Airlines, Inc., 2 F.3d 590, 593 (5th Cir.

1993). The moving party has the initial burden to “demonstrate by
-7-

competent evidence that no issue of material fact exists.” Scott

v. Moore, 85 F.3d 230, 232 (5th Cir. 1996). Once this burden is

met, the nonmoving party “must set forth specific facts showing

that there is a genuine issue for trial.” FED. R. CIV. P. 56(e).

Before bringing a civil action under Title VII, a plaintiff

must exhaust his administrative remedies by filing a charge of

discrimination with the EEOC. Sanchez v. Standard Brands, 431 F.2d

455, 460 (5th Cir. 1970). The district court granted summary

judgment for Goodyear on White's race discrimination claim because

it found that White had not exhausted his administrative remedies.

However, our review of the summary judgment record indicates that

Goodyear did not meet its burden of establishing through competent

summary judgment evidence that there is no genuine issue of

material fact of the issue of exhaustion. See Little v. Liquid Air

Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (stating that

“the party moving for summary judgment must demonstrate the absence

of a genuine issue of material fact”) (internal quotation marks

omitted). Goodyear submitted the EEOC’s entire file pertaining to

White’s ADA charge, Charge Number 330-93-1854. Goodyear states in

its brief accompanying its motion for summary judgment that it

requested and received all the EEOC files pertaining to White.

However, Goodyear’s counsel’s unsworn assertion does not constitute

competent summary judgment evidence. See FED. R. CIV. P. 56(e).

The Certification of Documents from the EEOC states that it is a
 

5 Moreover, the EEOC’s letter to Goodyear’s counsel specifically

states, “You have requested information contained in the file of Charge No. 330-

93-1854.”

 

6 White also submitted an EEOC questionnaire, which was not properly

authenticated for summary judgment purposes, in which he alleged that Goodyear

discriminated against him on the grounds of race and “illness.” 

-8-

“true and accurate” copy of the file pertaining to Charge Number

330-93-1854, but it does not state that this is the only EEOC file

for Sterling White.5 In sum, Goodyear’s summary judgment evidence

does not establish that White never filed a charge of race

discrimination with the EEOC. 

Additionally, we note that in his response to Goodyear’s

motion for summary judgment, White submitted his deposition

testimony in which he stated that he filed a complaint of race

discrimination with the EEOC after he filed the ADA charge.6 It is

unclear from the record whether an official EEOC charge or right to

sue letter ever resulted from White’s race complaint.

Nevertheless, we reverse the order granting summary judgment on

White’s Title VII claim because Goodyear has not met its burden of

establishing through competent summary judgment evidence the

absence of a dispute as to whether White exhausted his

administrative remedies. See id. (stating that “regardless of the

nonmovant’s response” a summary judgment motion must be denied if

the moving party fails to “demonstrate the absence of a genuine

issue of material fact”) (internal quotation marks omitted). 

IV
-9-

White next argues that the district court erred in granting

Goodyear summary judgment on his workers’ compensation retaliation

claim, brought pursuant to TEX. LAB. CODE. ANN. § 451.001. The

district court granted Goodyear’s motion for summary judgment on

the retaliation claim because it found that White had not suffered

an on-the-job injury. Because White did not have an on-the-job

injury, the district court reasoned, Goodyear could not retaliate

against him for instituting a workers’ compensation claim asserting

such an injury.

Section 451.001 of the Texas Labor Code provides that an

employer may not discriminate against an employee because he has

(1) in good faith filed a workers’ compensation claim, (2) hired a

lawyer to represent him in a workers’ compensation claim, (3) in

good faith instituted or caused to be instituted a proceeding under

the Texas Workers’ Compensation Act (“the Act”), or (4) has

testified or is about to testify in a proceeding under the Act.

TEX. LAB. CODE. ANN. § 451.001. Courts have liberally construed

§ 451.001 “to protect persons who are entitled to benefits under

the Workers’ Compensation Law and to prevent them from being

discharged by reason of taking steps to collect such benefits.”

Gauthreaux v. Baylor Univ. Med. Ctr., 879 F. Supp. 634, 639 (N.D.

Tex. 1994) (internal quotation marks omitted); see also Palmer v.

Miller Brewing Co., 852 S.W.2d 57, 60 (Tex. Ct. App.))Fort Worth

1993, writ denied). Therefore, an employee can recover for
-10-

retaliation for taking steps to collect a workers' compensation

claim "even when the employee was fired before filing a claim for

compensation so long as the evidence shows that the employee took

steps towards instituting a compensation proceeding." Palmer, 852

S.W.2d at 60-61. An employee takes steps towards instituting a

compensation proceeding simply by informing his employer of the

injury or the fact that he is seeking medical treatment for the

injury. Id.; Gauthreaux, 879 F. Supp. at 649. The plaintiff has

the burden of proving that there is a causal link between the

discharge and the plaintiff’s protected behavior. Burfield v.

Brown, Moore & Flint, Inc., 51 F.3d 583, 589-90 (5th Cir. 1995). 

Our research reveals no authority to indicate that an employee

must have a valid workers' compensation claim, or an actual workrelated injury in order to sue for workers' compensation

retaliation. Section 451.001 does require, however, that the

employee file a workers’ compensation claim or institute a workers’

compensation proceeding in good faith. In light of the liberal

construction that courts have given § 451.001, we conclude that

§ 451.001 was intended to allow employees to recover from employers

who retaliate against them for claims filed or instituted in good

faith, even if those claims later turn out not to be compensable

under the Act. In order to file or institute a claim in good

faith, an employee must have an objectively reasonable belief that
 

7 Also implicit in the good faith requirement of § 451.001, is that the

employee filed or instituted her workers’ compensation claim for a proper

purpose, not as a result of malice or spite. However, Goodyear’s motion for

summary judgment did not explicitly challenge White’s motive in this case.

-11-

she has a compensable injury under the Act.7 See Gunn Chevrolet,

Inc. v. Hinerman, 898 S.W.2d 817 (Tex. 1995) (holding that employee

did not have a good faith claim for workers’ compensation because

her employer did not subscribe to the Act, employee had no reason

to think that employer did, and employee never claimed that

employer was responsible for her injury).

We note that Texas courts have adopted a similar good faith

standard for a related employment statute, the Texas Whistle Blower

Act. See Texas Dept. Hum. Serv. v. Hinds, 904 S.W.2d 629, 633, 636

(Tex. 1995) (comparing the two statutes). The Whistle Blower Act

prohibits “a local government from terminating an employee for

reporting ‘a violation of law to an appropriate law enforcement

authority if the employee report is made in good faith.’” Lastor

v. City of Hearne, 810 S.W.2d 742 (Tex. Ct. App.))Waco 1991, no

writ) (quoting TEX. REV. CIV. STAT. ANN. art. 6252-16a, § 2)

(emphasis in original). Despite the statutory language which

appears to require that the employee report an actual violation of

law, Texas courts have held that “the good-faith requirement can be

given effect only if it protects the employee from retribution for

reporting an incident that turns out not to be a violation of law.”

Texas Dept. Hum. Serv. v. Green, 855 S.W.2d 136,150 (Tex. Ct.
-12-

App.))Austin 1993, writ denied); Lastor, 810 S.W.2d at 744.

Therefore, it is not determinative whether the employee reports an

actual violation of law. Instead, the focus of the good faith

requirement “is whether an employee’s belief that the reported

conduct violates the law is objectively reasonable.” Green, 855

S.W.2d at 151.

Courts also employ the “objectively reasonable belief”

standard in federal discrimination retaliation statutes. In Payne

v. McLemore’s Wholesale & Retail Stores, the plaintiff alleged that

he was not “rehired in retaliation for his boycott and picketing

activities which were, according to plaintiff, in opposition” to

his employer’s unlawful employment practice of discriminating

against blacks in hiring and promotion. 654 F.2d 1130, 1135-36

(5th Cir. 1981), cert. denied, 455 U.S. 1000, 102 S. Ct. 1630, 71

L. Ed. 2d 866 (1982). The defendant contended that the plaintiff

had failed to establish a prima facie case of retaliation “because

he failed to prove that defendant had committed any unlawful

employment practices.” Id. at 1137. The court disagreed, holding

that a plaintiff can establish a prima facie case of retaliatory

discharge under Title VII “if he shows that he had a reasonable

belief that the employer was engaged in unlawful employment

practices.” Id. at 1140; see also Grant v. Hazelett Strip-Casting

Corp., 880 F.2d 1564, 1569 (2d Cir. 1989) (stating that a plaintiff

can establish a prima facie case of retaliatory discharge under the
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Age Discrimination in Employment Act if he was retaliated against

for opposing a practice which he had “a good faith, reasonable

belief” was prohibited by the Act) (internal quotation marks

omitted).

Although the district court erred in granting Goodyear summary

judgment on the ground that White did not suffer an on-the-job

injury, we still affirm the summary judgment on this claim. As we

have stated, the relevant inquiry in this case is whether White had

an objectively reasonable belief that he had a compensable injury

under the Act when he informed his employer of his injury. White

alleges that his sickle cell crisis may have been caused by his

work environment, thus giving rise to a compensable injury.

However, Goodyear’s summary judgment evidence demonstrates that

when White instituted a proceeding under the Act by notifying his

employer of his illness, he stated that his illness was not in any

way due to a condition of his occupation. Accordingly, White did

not believe, reasonably or unreasonably, that he had a compensable

injury under the Act. Therefore, White did not institute a

workers’ compensation proceeding in good faith, and Goodyear is

entitled to summary judgment on this claim. 

V

White contends that the district court abused its discretion

in denying his FED. R. CIV. P. 39(b) motion for a jury trial. FED.

R. CIV. P. 38(b) allows a party to demand a jury trial “not later

than 10 days after the service of the last pleading." “A party may
 

8 White’s Rule 39(b) motion acknowledged:

Although the court provided Mr. White with helpful forms to plead his

-14-

be relieved of the Rule 38(b) requirement upon motion and at the

discretion of the court pursuant to FED. R. CIV. P. 39(b)."

Richardson v. Henry, 902 F.2d 414, 416 (5th Cir.), cert. denied,

498 U.S. 901, 111 S. Ct. 260, 112 L. Ed. 2d 218 (1990); Lewis v.

Thigpen, 767 F.2d 252, 257 (5th Cir. 1985). If a pro se litigant

credibly alleges that he did not make a timely request for a jury

trial because of his ignorance of the relevant procedure, “the

trial court should exercise its discretion under Rule 39(b) to

grant him a trial by jury in the absence of strong and compelling

reasons to the contrary.” Lewis, 767 F.2d at 259. In determining

whether a pro se litigant's claim of inadvertence is credible, the

court can consider factors such as a pro se litigant's choice to

represent himself and his experience with trial court procedure.

Id. Disruption of a court’s docket or prejudice to the opposing

party can constitute strong and compelling reasons to deny a pro se

litigant’s credible claims of ignorance. Id. at 260 n.12.

Moreover, even if "a party is erroneously denied a jury trial, the

error is harmless if the evidence could not have withstood a motion

for directed verdict." Id. at 260.

White claims that he did not make a timely motion for a jury

trial because at the time the motion was due, he was proceeding pro

se and was not aware of the jury demand requirement.8 In denying
causes of action, and although the court provided Mr. White with many

useful written instructions to help him proceed, neither the forms nor the

instructions advised him that he must specifically request a trial by jury

to obtain one, or that such a request must be made within certain time

limits. The complaint form provided to Mr. White contained no box or

blank regarding jury trial.

At this court’s urging, Mr. White ultimately obtained counsel, who

filed a jury demand simultaneously with her Notice of Appearance.

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White’s Rule 39(b) motion, the district court did not make a

finding as to whether White’s excuse was credible. The district

court did state that White began the action “through the assistance

of a commission,” and that the court had “allowed White several

indulgences already,” including proceeding without paying costs.

These statements do not indicate whether the district court

believed White’s claims of ignorance and do not indicate any other

valid reason for denying White’s Rule 39(b) motion.

The district court’s chief rationale for denying White's

motion was that granting it would unfairly prejudice Goodyear

because the company would lose a "favorable procedural status."

The district court specifically stated:

White argues that Goodyear is not prejudiced by being put to

a jury trial. If having a jury that it does not want is not

prejudice to Goodyear, then it cannot be significant to White.

White believes that he will enjoy a substantial advantage over

Goodyear in a jury trial; if he is correct, his advantage is

Goodyear’s disadvantage. Having escaped a jury demand within

the time allowed by the rules, Goodyear emphatically contends

that it will be prejudiced))prejudiced in that it will lose a

favorable procedural status.

The district court’s definition of prejudice would effectively

mandate that all opposed Rule 39(b) motions be denied on the

grounds of prejudice to the opposing party. Employing this
-16-

definition of prejudice would frustrate our longstanding belief

that “the right to trial by jury is a basic and fundamental feature

of our system.” Lewis, 767 F.2d at 259 (internal quotation marks

omitted). Proper considerations of prejudice in the context of a

Rule 39(b) motion include a lack of time to prepare for an

impending trial or significant time and resources spent preparing

for a bench trial. See United States v. Unum, Inc., 658 F.2d 300

(5th Cir. 1981) (holding that district court did not abuse its

discretion in denying a Rule 39(b) motion because “[f]orcing the

plaintiff to change its trial strategy [only a few days before the

final docket call] would have worked a substantial hardship”).

Neither of these considerations is present in this case. 

Based on the foregoing, we hold that the district court abused

its discretion by applying an improper standard in denying White’s

motion for a jury trial. Additionally, we cannot conclude that

this error was harmless because based on the limited record before

us, it is not clear that White’s claims cannot withstand a motion

for judgment as a matter of law. See Rhodes v. Guiberson Oil

Tools, 75 F.3d 989, 994 (5th Cir. 1996) (en banc) (stating standard

for judgment as a matter of law); Boeing Company v. Shipman, 411

F.2d 365, 374 (5th Cir. 1969) (en banc) (same). We therefore

vacate the district court’s order. On remand, if the district

court finds that White’s claim of ignorance is not credible, it

must articulate the reasons for its findings. Lewis, 767 F.2d at
-17-

260. In addition, if there are any strong and compelling reasons

to deny White’s Rule 39(b) motion, the district court must

specifically state those reasons on remand. Id.

VI

White’s attorney, Cynthia Thomson, argues that the district

court abused its discretion in sanctioning her, pursuant to 28

U.S.C. § 1927, because the court failed to make the necessary

factual findings. Section 1927 allows a district court to require

an attorney to personally pay the excess costs, expenses, and

attorneys' fees reasonably incurred as a result of the attorney's

actions which unreasonably and vexatiously multiply the

proceedings. 28 U.S.C. § 1927. We review a district court’s award

of fees and costs under 28 U.S.C. § 1927 for abuse of discretion.

Browning v. Kramer, 931 F.2d 340, 344 (5th Cir. 1991). "Section

1927 requires a sanctioning court to do more than disagree with a

party's legal analysis.” F.D.I.C. v. Calhoun, 34 F.3d 1291, 1300

(5th Cir. 1994). The court must specifically determine that the

attorney’s claims were unreasonable and that they were asserted for

an improper purpose. Id. In addition, the court must make

findings identifying the specific conduct which unreasonably and

vexatiously multiplied the proceedings. Browning, 931 F.2d at 346.

The attorney will only be responsible for the excessive fees and

costs that the court determines were incurred by the opponents in

responding to such claims. Id.
 

9 Goodyear argues that White's appeal of his race and retaliation

claims is frivolous; therefore, Goodyear should recover its attorneys' fees and

costs incurred as a result of defending the appeal, pursuant to FED. R. APP. P.

38. See FED. R. APP. P. 38 (stating that "if a court of appeals determines that

an appeal is frivolous, it may, after a separately filed motion or notice from

the court and reasonably opportunity to respond, award just damages and single

or double costs to the appellee"). Because we have concluded that White’s appeal

of these claims is not frivolous, we decline Goodyear’s request for sanctions.

-18-

The district court failed to identify Thomson’s unreasonable

and vexatious conduct which multiplied the proceedings, or the fees

and costs which Goodyear incurred as a result of this conduct. We

therefore hold that the district court abused its discretion in

imposing sanctions under § 1927, and we vacate the award. See

Calhoun, 34 F.3d at 1301 (reversing award of sanctions where claims

were “warranted by existing law” and district court did not make

“separate showing of improper purpose”); F.D.I.C. v. Conner, 20

F.3d 1376, 1385 (5th Cir. 1994) (vacating award of sanctions under

§ 1927 where district court did not make a specific finding that

the attorney’s conduct was vexatious). “On remand, the district

court may, if the facts warrant it, identify the conduct in which

[Thomson] engaged that displayed the degree of recklessness, bad

faith, or improper motive required for a finding that [Thomson] has

multiplied the proceedings unreasonably and vexatiously.” Conner,

20 F.3d at 1385 (internal quotation marks omitted).9

VII

For the foregoing reasons, we AFFIRM in part, REVERSE and

REMAND in part, and VACATE and REMAND in part for further

proceedings consistent with this opinion.